CongressLine - Combating Online Piracy

Hearings

Hard on the heels of the introduction of the bill, the Courts and Intellectual Property
subcommittee held its first hearing on H.R. 2652, prompting industry to suspect that the
legislation was on a fast track. (For the testimony and the text of the bill as
introduced, please go to: http://www.house.gov/judiciary/4.htm
and click on "Hearing regarding H.R. 2652," October 23, 1997.) However, at the
hearing, Rep. Coble sought to reassure those in attendance that the bill was not going to
be pushed through without their input. The Register of Copyrights, Marybeth Peters, voiced
her support, saying it would provide the database producer legal recourse when the
"essence" of their materials are lifted for commercial gain. Opposition came in
the form of University of Michigan Law Professor, J.H. Reichman, who failed to see how
protecting database producers to this extent would not adversely affect the scientific,
educational and research communities.

The second hearing on the bill was held in February of 1998. (For the testimony, please
go to: http://www.house.gov/judiciary/4.htm
and look for, "Continued legislative hearing on H.R. 2652," February 12, 1998.)
The concern over the effect of the bill was palpable this time, as the online banking and
information technology industries sent representatives to vociferously object to the
legislation as introduced. The Online Banking Association representative stated that much
of the information they rely upon for their customers is gleaned from other databases and
this bill would substantially restrict their access to critical information and
dramatically increase their overall costs.

The representative from the Information Technology Association of America (ITAA)
articulated that this legislation has many problems, mainly that it is currently
unnecessary. In 1991, the U.S. Supreme Court decided a cased entitled Feist Publications Inc. vs. Rural Telephone
Service Co. in which the court ruled that factual information such as white pages, is
not subject to the so called "sweat of the brow "copyright protection. This
ruling has allowed for the development of a prosperous and dynamic database publisher
industry. According to the ITAA, H.R. 2652 is effectively overruling Feist by
criminalizing the extraction of data from collections of information, which would severely
undermine the Internet's potential as a resource and impair the growth of the information
technology industry.

Markup

The saga of H.R. 2652 continued with a markup of the bill by the subcommittee on Courts
and Intellectual Property on March 18, 1998. The subcommittee adopted one amendment which
was offered by Rep. Coble and then reported the bill to the full committee on the House
Judiciary. The full committee marked up the bill on March 24, 1998. The amendments made to
the bill were largely technical in nature, seeking to reassure industry that it does not
overturn Feist and to extend legal protection to public university researchers and
educators who maintain collections of information in database form. The bill was ordered
reported to the floor of the House of Representatives as amended. (However, the committee
has not yet filed the report on the amended bill.)

Qualms and Concerns

The ramifications of this legislation could affect private and public, profit and
nonprofit. The stakes for some could be considerable. For example, the large legal online
publishers, Reed-Elsevier and West Publishing Corporation (a subsidiary of Thompson
Publishing) are keeping a suspiciously low profile. Recent court decisions have eroded
West's claim of copyright protection in their pagination and the organization of opinions
system. The impact of H.R. 2652 on the world of online legal publishing, and more
importantly, the consumer has not been truly addressed. This could be the vehicle West and
Reed-Elsevier need to seriously restrict those who threaten their market dominance.

The Library and Information Technology communities are both questioning the very
necessity of the legislation. The American Library Association sent a representative to
testify at the hearing in October about the communities fear that the bill was incredibly
over broad and simply not merited by the current state of online publishing. The ALA's
position remains basically unchanged, as indicated by the ALA Action Alert. The
Information Technology Industry, as represented by organizations such as the ITAA and the Digital Future Coalition have
similar problems with the antipiracy bill. However, the Software Publishers Association has a
whole Website dedicated to antipiracy issues and for the reporting of suspected piracy.

According to the subcommittee on Courts and Intellectual Property, the committee report
on the bill is going to be filed on May 12. The bill was scheduled be debated on the floor
of the U.S. House of Representative under suspension of the rules, which is a tactic
utilized to limit debate, usually to 40 minutes, on May 12. However, the bill was pulled
from the floor at the last minute due to a minor dispute concerning language under the
jurisdiction of the House Committee on Commerce. The bill was then passed on May 19
by a voice vote. The Senate, which does not currently have a companion bill to H.R.
2652, will now have the opportunity to address this thorny question. Maybe online database
publishers will be living in a perfect world.